FILED
United States Court of Appeals
Tenth Circuit
March 3, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-3317
v. (D.C. Nos. 5:10-CV-04034-SAC and
5:08-CR-40020-01-SAC)
ARMANDO OCHOA-EQUIHUA, (D. Kan.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Defendant-Appellant Armando Ochoa-Equihua, a federal inmate proceeding
pro se, seeks a certificate of appealability (“COA”) to challenge the district
court’s dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his
sentence. Mr. Ochoa-Equihua has not made “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Accordingly, we deny his
request for a COA and dismiss the appeal.
Background
On April 29, 2009 Mr. Ochoa-Equihua pleaded guilty to distributing 4.1
grams of actual methamphetamine. R. 16. He was sentenced to 87 months in
prison and three years of supervised release. Id. The plea agreement included a
waiver of all rights to appeal or to bring a collateral attack on his conviction or
sentence—including a motion under 18 U.S.C. § 2255. Id. at 37-38, see
also United States v. Ochoa-Equihua, Nos. 08-40020, 10-4034, 2010 WL
3924675, at *1 (D. Kan. Sept. 29, 2010) (language of the waiver). Nonetheless,
on April 2, 2010 Mr. Ochoa-Equihua filed a motion under 28 U.S.C. § 2255. R.
22. The government moved to enforce the waiver contained in the plea
agreement, see id. at 36, and the district court granted the motion. See Ochoa-
Equihua, 2010 WL 3924675, at *4.
Discussion
To appeal from the denial of his § 2255 motion, Mr. Ochoa-Equihua must
obtain a COA. See 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, he must make
“a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
Where, as here, the district court denied the § 2255 motion on procedural
grounds, the prisoner must demonstrate that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).
As the district court correctly noted, “‘[a] waiver of collateral attack rights
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brought under § 2255 is generally enforceable where the waiver is expressly
stated in the plea agreement and where both the plea and the waiver were
knowingly and voluntarily made.’” Ochoa-Equihua, 2010 WL 3924675 at *2
(quoting United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001)).
However, the waiver is invalid if it would result in a miscarriage of justice, see
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per
curiam), which occurs if (1) the district court relied on a factor such as race, (2)
the prisoner’s counsel was ineffective concerning the negotiation of the plea
agreement, (3) the sentence exceeds the statutory maximum, or (4) the waiver is
otherwise unlawful. Cockerham, 237 F.3d at 1182 (citations omitted).
In this case, the district court found that the § 2255 waiver was expressly
stated in the plea agreement and that the waiver was knowing and voluntary.
Ochoa-Equihua, 2010 WL 3924675, at *2-3. These findings are supported by the
record and are not reasonably debatable. See R. 37-38; id. at 46 (defendant
conceding that he knowingly and voluntarily waived the right to collaterally
attack the sentence). As in the district court, Mr. Ochoa-Equihua contends that
counsel was ineffective for not obtaining a downward adjustment at sentencing
based on his minor role in distributing the drugs. Aplt. Br. at 1. The district
court recognized that this does not come within the Cockerham exception for
ineffective assistance of counsel in negotiating the plea agreement. Ochoa-
Equihua, 2010 WL 3924675, at *3. That conclusion is not reasonably debatable.
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See, e.g., Cockerham, 237 F.3d at 1187; United States v. Morrison, No. 10-3210,
2011 WL 286365, at *3 (10th Cir. Jan. 31, 2011) (unpublished) (listing cases).
Finally, the district court concluded that to the extent Mr. Ochoa-Equihua’s
motion could be read as challenging counsel’s effectiveness in negotiating the
plea waiver, it was devoid of facts tending to prove that counsel’s performance
“fell blow an objective standard of reasonableness and that, but for counsel’s
error, the defendant would have insisted upon going to trial.” Ochoa-Equihua,
2010 WL 3924675, at *3 (internal quotation marks and citations omitted).
Again, that conclusion is not reasonably debatable. The thrust of Mr.
Ochoa-Equihua’s argument is that he played a small role in the conspiracy and
thus should have received a sentence reduction. Aplt. Br. at 2. However, Mr.
Ochoa-Equihua’s motion is bereft of any facts suggesting this to be the case.
Absent facts tending to show that counsel’s performance was deficient, the
district court’s conclusion is not reasonably debatable.
Accordingly, we DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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